BCCLA and JHSC v Canada [2017]

CASE SUMMARY

This case is a Charter challenge to the use of solitary confinement in Canadian federal prisons. Federal prisons engage in two types of solitary confinement: “disciplinary segregation” and “administrative segregation.”

Federally incarcerated persons can be placed in disciplinary segregation as punishment for committing institutional offences. Prisoners subject to disciplinary segregation are entitled to certain protections, such as limits on the number of days they can stay in solitary; an independently adjudicated hearing concerning their placement; access to a lawyer for that hearing; and the benefit of a high criminal law standard of proof (proof beyond a reasonable doubt).

In contrast, under the regime challenged in this case, federally incarcerated persons can be placed in administrative segregation for a variety of vague and general reasons, such as belief on the part of prison administrators that the prisoner threatens the safety of the prison or anyone in the prison. Under administrative segregation, inmates can be put in solitary indefinitely, do not benefit from review of their placement by an independent decision-maker, and do not have access to legal counsel at any administrative review of their placement.

Prisoners in solitary confinement are confined in prison cells and deprived of meaningful human contact for up to 23 hours a day, sometimes for months and years at a time. Prolonged, indefinite placement in solitary confinement has been recognized as causing serious harms including psychosis, major depression, hallucination, paranoia, self-harm, and suicidal behaviour. Placement in solitary confinement is known to exacerbate existing mental health conditions and the impacts of past trauma.

Federally incarcerated women experience specific and severe harms as a result of solitary confinement. Women are at greater risk of self-harming behaviours that may be used to justify their initial placement in solitary confinement and that are likely to worsen while in solitary. Women are also disproportionately impacted by physical and psychological trauma arising from pre-prison incidents of violence. Indigenous women are the fastest growing segment of the prison population in Canada and are disproportionately represented both among women in prison and among women in solitary confinement.

The plaintiffs in this case are challenging prolonged, indefinite solitary confinement under the Charter. Among other things, they argue that this practice constitutes cruel and unusual punishment, violates the life, liberty and security of the person, and discriminates against mentally ill and Indigenous persons.

WEST COAST LEAF’S INVOLVEMENT

West Coast LEAF intervened in this case at the BC Supreme Court to present an intersectional lens on the constitutionality of solitary confinement that attends to overlapping inequalities. We argued that in order to truly understand the stigmatization and harms caused by solitary, the court should consider how this practice may be experienced differently by women, particularly Indigenous women and/or women with mental illness.

The BC Supreme Court released its judgment on January 17, 2018. Justice Peter Leask ruled that solitary confinement violates sections 7 and 15 of the Charter, by harming prisoners’ life, liberty, and security of the person and by discriminating against Indigenous prisoners and prisoners experiencing mental illness. We are pleased to see the disproportionate and discriminatory harms of solitary confinement recognized by the court. The judgment accepts the evidence of experts and others who testified about the ways in which solitary confinement triggers and exacerbates mental health conditions, and increases risks of self-harm and suicide. The court also recognized that these harms are more severe for Indigenous women. The court found that solitary confinement harms all prisoners, and that the effects are discriminatory against Indigenous persons and persons experiencing mental illness generally. The court struck down the solitary confinement regime (described in the law as “administrative segregation”), giving the government one year to change the law.

A bill was introduced in Parliament on June 19, 2017 that proposes to add some procedural safeguards for prisoners subjected to solitary confinement. However, this bill does not address the real harms associated with isolation or their disproportionate impacts for Indigenous people and people experiencing mental illness. Isolated confinement – by any name – has no place in Canada.

Canada appealed the BC Supreme Court’s decision on February 16, 2018. West Coast LEAF was granted leave to intervene in the appeal jointly with the Native Women’s Association of Canada (NWAC) on June 29, 2018.

The appeal was heard by the BC Court of Appeal on November 13 and 14, 2018. West Coast LEAF and NWAC provided written submissions and attended the hearing.

WHAT’S NEXT

Under the BC Supreme Court decision, Canada had until January 17, 2019 to replace the current law authorizing solitary confinement.

On October 16, 2018, the federal government introduced Bill C-83 to amend the current administrative segregation regime. As of January 7, 2019, Bill C-83 has passed first and second reading in the House of Commons and the Standing Committee on Public Safety and National Security has recommended amendments to the bill. Before becoming law, the bill must pass its third reading and go through the Senate.

At the BC Court of Appeal hearing in November, Canada asked the court to give the government an extra six months to change the law. On January 7, 2019, the BC Court of Appeal released its decision on this issue, allowing for the current law to continue until June 17, 2019 with conditions in order to give the government more time to pass its new legislation while trying to mitigate some of the Charter violations of the current law.

The BC Court of Appeal has not yet released its decision on Canada’s appeal of the BC Supreme Court decision.

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West Coast LEAF is the only organization in BC that uses the law to further gender equality. We work to end gender-based discrimination using equality rights litigation, law reform, and public legal education.